‘judicial overreach’?

“We are now prescribing to the National Assembly to only process impeachment after an inquiry and a collective predetermination of the seriousness of the violation of the Constitution or the law or the existence of any ground has been established. And we do so when there is a tension between what ‘we’ consider appropriate as against the mechanism the assembly already has, that it has previously used, and most applicants deem appropriate, and the possible improvement that the assembly seeks to effect through its own sub-committee based on legal advice already received from the chief state law adviser and Parliament’s in-house legal team. There exists no jurisdiction in the whole world, that I am aware of, where a court has decided for Parliament how to conduct its impeachment process. Respect for separation of powers explains why this is so.”

This is a very serious attack on the majority judgment and, unsurprisingly, it elicited a response from Justice Johann Froneman: “It is part of constitutional adjudication that, as in this matter, there may be reasonable disagreement among judges as to the proper interpretation and application of the Constitution. The respective merits of opposing viewpoints should be assessed on the basis of the substantive reasons advanced for them. There is nothing wrong in that substantive debate being robust, but to attach a label to the opposing view does nothing to further the debate.”

It is somewhat difficult to comprehend fully why a finding that the National Assembly should introduce rules to properly regulate a process that vindicates the express constitutional provision of impeachment of a president constitutes so egregious an overreach.

The majority judgment does not touch on policy issues and, not that long ago, in the Mazibuko case, the court ordered the National Assembly to introduce rules to ensure that a motion of no confidence could be held.

Could it be that Mogoeng is looking to the future and the possibility of a level of governance where it would be counterproductive to the democratic development of the country for courts to play as active a role as they have under the constitutional delinquency of the Zuma era? “The divergence of views ... flows solely from different interpretations assigned to section 89 ... This is not novel. It happens frequently in courts presided over by panels of judges.”

Froneman said: “There is nothing wrong in that substantive debate being robust, but to attach a label to the opposing view does nothing to further the debate.”

Though it is not unusual for judges to disagree, and disagree vehemently, the tone of the judgments and the unusual interruption by the chief justice during the handing down of the judgment have raised questions about whether all is well among the justices of the highest court.

It appears that the judgments were handed down with undue haste and with no discernable reason for it. There are some typos and formatting issues — missing full stops and an order that starts at point seven — highly unusual for a Constitutional Court judgment that was not delivered urgently.

Far more significantly, Mogoeng’s judgment criticised the majority decision for setting a 120-day time limit for the adoption of impeachment rules and a 180-day time limit for the investigative process to determine whether Zuma had committed impeachable conduct.

“Rules are to be made within 120 days, which includes the festive period and Parliament’s recess period. And in effect the impeachment, to be initiated in terms of those rules, is only allocated 60 days — 180 days minus 120 days,” said Mogoeng.

The media summary of the majority decision — not binding on the court — also refers to 120 and 180 days. The majority judgment itself, however, does not. It says “without delay”.

The reason for this discrepancy is not clear but it is possible that an earlier draft of the majority judgment did specify time periods and it was changed at the last minute. If this is so, Mogoeng should have been able to amend his own judgment accordingly. He should also have — before going into open court — been able to amend the summary of his judgment prepared for the handing down of the judgment.

They say hard cases make bad law. The Zuma presidency has seen the courts being drawn into many hard cases — disputes that would have preferably been resolved elsewhere. The long-term consequences for the law made in this period will be judged by history.